Compare and contrast the President's power to pardon in India and in the USA. Are there any limits to it…

Question

Compare and contrast the President's power to pardon in India and in the USA. Are there any limits to it in both the countries? What are preemptive pardons?

Ghissu Editorial · Accepted Answer

India's President pardons on Cabinet advice, only after conviction and subject to judicial review, while the US President pardons federal offences personally and almost without check. Preemptive pardons, granted before any charge, such as Ford's 1974 pardon of Nixon, are possible only in the USA.

**Introduction**

The pardon is a sovereign act of mercy. Biden's preemptive pardons of December 2024 and January 2025 revived the debate on its reach, which India's Article 72 settles more tightly.

**India and the USA Compared**

SKETCH: comparison | Pardon Power: India vs USA
a: India (Article 72)
b: USA (Article II)
- On Cabinet advice :: Personal discretion
- After conviction :: Before or after charge
- Union offences, death sentences :: Federal offences only
- Five forms of clemency :: Pardon, commutation, reprieve
- Review for mala fides :: Almost unreviewable

1. **Scope**: Article 72 covers Union-law offences, court-martial sentences and all death sentences with five forms of clemency; the US power covers only federal offences.
2. **Discretion**: The Indian President acts on Cabinet advice, as held in Maru Ram (1980) and Kehar Singh (1989), while the US President decides personally, with the pardon attorney only advising.
3. **Timing**: Indian clemency applies only to a person already convicted of an offence, whereas a US pardon can be granted at any stage, even before an investigation begins.

**Limits in Both Countries**

1. **India**: Epuru Sudhakar (2006) allows review of mala fide or arbitrary clemency, and Shatrughan Chauhan (2014) permits commutation for undue delay in deciding mercy petitions.
2. **USA**: Impeachment cases and state crimes are excluded, Burdick (1915) requires acceptance of a pardon, and the self-pardon remains untested.

**Preemptive Pardons**

1. **Meaning and use**: A preemptive pardon forgives offences before any charge, as Ford's 1974 pardon of Nixon did, and as Biden's 2025 pardons of Anthony Fauci and Mark Milley did; Article 72's link to conviction rules them out in India.

**Conclusion**

India's pardon is an accountable constitutional duty exercised on advice, while the US pardon is a near-absolute personal prerogative. The Indian model keeps mercy within the rule of law.

Compare and contrast the President's power to pardon in India and in the USA. Are there any limits to it in both the countries? What are preemptive pardons?

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